From the Wagner Act to the Human Rights Watch Report: Labor and Freedom of Expression and Association, 1935-2000*

This paper examines the legal restrictions on the labor movement's right to picket and strike since the passage of the National Labor Relations Act (NLRA) or Wagner Act in 1935. The NLRA was seen as a statutory equivalent of the First Amendment for the labor movement, guaranteeing workers rights of association and expression they had been denied historically through the use of court injunctions, criminal conspiracy prosecutions, and extra-legal violence. Supreme Court decisions of the late 1930s, often arising out of labor conflicts, also significantly expanded rights of freedom of association and expression. Yet a report by Human Rights Watch (HRW) in 2000 concluded that US workers lacked the basic rights to organize, bargain, and strike required by international human rights standards. It found that US labor laws permitted employers to fire, harass, and intimidate workers with impunity. This paper examines the decline of these rights since the Wagner Act, seeing the roots of the legal decline in the ambivalent legacy of the Act itself. On the one hand, both the Act and the Court legally recognized unions as legitimate political organizations and extended to them many of the associative and expressive freedoms that had been available to other groups. On the other hand, the legal price for this recognition of legitimacy was the restriction of a range of expressive activities. Subsequently, labor's rights came to be treated more under the framework of industrial relations and economic policy than of civil liberties and constitutional freedoms. This gradual legal retrenchment, along with political and economic developments, left the labor movement severely weakened by the end of the century, with significantly less legal protection than its counterparts in other economically advanced countries. I explore these developments by relating them to the literatures on American exceptionalism and industrial relations. Theoretically, I rely on work which examines the relationship between institutional structure and human agency to understand the strategic choices made by corporations, state actors, and the labor movement. The paper concludes with an assessment of recent calls for labor law reform as a strategy for reviving the labor movement.